It sounds like the government has several issues in its prosecution of Senator Ted Stevens.

For one there has been the question of whether the prosecution has provided all exculpatory material to the defense. It is mandatory that all exculpatory material be turned over to the defense. In addition to this being a requirement of law, it is also in the rules of professional conduct that regulate many attorneys. Rule 3.8 of the ABA Model Rules of Professional Conduct provide -

The Prosecutor in a criminal case shall: ...(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.....except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

Cooperating witnesses are always subject to scrutiny. But when the cooperating witness has benefitted enormously by cooperating with the government, the testimony becomes suspect. What was the benefit here and will if effect the credibility of the witness? see here.

And is the evidence sufficient here to sustain a conviction - the ultimate question that the jury will be resolving.

Having the defense bring in a Democrat senator as a character witness is powerful to say the least. See Del Quentin Wilber, Washington Post, Inouye Praises Steven's Integrity

So where's the task force to deal with the current financial situation?

The President's Corporate Fraud Task Force was created several years ago to prosecute corporate frauds. (see here) It's 2008 Report attempts to demonstrate the successes achieved by this task force. But as noted here, the Report failed to provide the "not guilty" verdicts and reversals received from appellate courts. As noted here, it was a Report that failed to provide a full assessment of what actually had transpired. But at least there was a task force to handle the alleged frauds.

Just this past week, DOJ issued a Press Release concerning its Katrina Hurricane Task Force and noting the large number of prosecutions and highlighting some of the major ones. Again, no acknowledgment of any unsuccessful prosecutions. But again, there was a task force to handle the alleged frauds.

If there was illegality in this recent mess as some at a recent debate insinuated, and if the harm was caused by such illegality, shouldn't there be a task force to investigate it? (see here) The FBI has one, where is DOJ's?

Date: March 4-6, 2009Format: National Institute Location:Westin St. Francis, San Francisco, CA

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John Wagner of the Washington Post has an article titled, Ethics Counsel Testimony Is Sought in Currie Probe. It is an important investigative piece as it reports on a subpoena that was served on the Maryland legislature's ethics counsel. The federal investigation appears to involve Senator Ulysses Currie and the feds seem to want attorney-client privileged material of the ethics counsel. It is hard to imagine that federal prosecutors would not realize the ramifications of such a move. Once you start subpoenaing testimony from an ethics counsel, individuals will stop seeking the advice of that counsel. The net result will be less compliance with the law.

William "Billy" Wilkins, Former Chief Judge, joins Nexsen Pruet. He was "Ronald Reagan’s first selection to the federal bench in the nation and the former Chief Judge of the U.S. Court of Appeals for the Fourth Circuit." As a partner at Nexsen Pruet, "he will lead the firm’s White-Collar Crime, Appellate Advocacy, and Corporate Compliance/Crisis Management practice groups and actively participate in the firm’s Business Litigation Group. Judge Wilkins will be based in the firm’s Greenville, S.C., office."

How many times should a person be sentenced and at what point does the continued uncertainty constitute part of the punishment. Although the First Circuit does not cover this aspect in its recent decision in the United States v. Thurston case, it does state:

"This, the third review of William Thurston's sentence, was necessitated by the Supreme Court's decision in United States v. Gall, 128 S. Ct. 586 (2007). We affirm the sentence. . . . To say that the journey of this case has been arduous for the parties involved would be an understatement."

The defendant was convicted of "conspiring to defraud the Medicare program of more than five million dollars." The district court sentence, given deference by this court, was for 3 months incarceration and 24 months supervised release.

In United States v. Amato, the Second Circuit held that restitution could be ordered under the mandatory Victims Restitution Act of 1996 for victim's expenses of attorney fees and auditing costs that were a "direct and foreseeable result of the offense." The court stated:

"Defendants perpetrated a complicated fraud against a large corporation and a number of its clients, as well as the states to which those clients were required to turn over escheated funds. That this fraud would force the corporation to expend large sums of money on its own internal investigation as well as its participation in the government's investigation and prosecution of defendants' offenses is not surprising. There is no doubt that EDS's attorney fees and auditing costs were a direct and foreseeable result of defendants' offenses."

Talk about a hot topic - there were no available seats in the room for the session titled The Sub-Prime Meltdown: Reactions and Action at the SEC and DOJ, and people were standing in the back and on one side of the room.Moderating the panel, Philip Hilder, introduced the topic by saying that we are likely to be headed for some serious investigations. Craig Margolis focused on subprime basics. When you have defaults and "perceptions of default" problems arise. The ripple effect and downgrades will likely lead to investigations and prosecutions.

Gil Soffer, from the Office of the Deputy Attorney General, after giving the DOJ disclaimer for anything said, noted that U.S. Attorneys offices were prosecuting in the districts and there were also quite a number of task forces that might include players such as DOJ, SEC, and others.

Everyone on the panel seemed to be talking about the complexity of securities cases - the same complexity that seemed to be pervasive in the Enron investigation.

But some matters may prove to be simple. Lisa Monaco, Deputy Chief of Staff to the Director of the FBI, noted a caseload that had more than doubled - from 700 to 1400 cases -- cases involving everything from misrepresentation on loan applications to property flipping. And Andy Calamari, Associate Regional Director of the U.S. Securities and Exchange Commission talked about coordinating on a policy level.

The luncheon address was given by Deputy Attorney General Mark Filip. His talk can be found here. Some might say that it sounded like a plea not to be subject to a statute like the Attorney-Client Privilege Protection Act. And although the new guidelines are a step in the right direction, as guidelines they are not enforceable at law absent a court using its supervisory powers.

Finally, the last panel I had the opportunity to see was the one I participated on - Monitors: When, Why and How? Is Congressional Oversight Inevitable. Joshua Hochberg, the moderator, asked some thoughtful questions following my brief overview of the proposed Accountability in Deferred Prosecution Act. Panelists, Jonathan (Jon) Barr, Paul Pelletier (DOJ), Cheryl Scarboro (SEC) and Amy Walsh looked at questions such as the role of a monitor, the selection of a monitor, the cost of paying a monitor, and some of the controversies related to the appointment of a monitor.

I did not have the chance to hear some wonderful panels that included many top individuals and was sorry to miss the talks of others from the academy - Professors John Coffee and Sara Sun Beale. From the little I did see, I would rank the Third Annual Securities Fraud conference as the best yet. For more information on this conference see here.

Former General Counsel at McAfee was acquitted in a case of alleged backdating. Dan Levine has a wonderful piece describing the "intent" issue faced by the jury in this case. See Dan Levine, The Recorder, No Charges Stick to Former McAfee General Counsel in DOJ Case Mens Rea is typically the most crucial element in a white collar crime case. This case sends a message to the government that they need to think twice about bringing backdating prosecutions.

See also LA Times (AP) Former McAfee lawyer is acquitted in stock options backdating trial

These three presentations will be followed by a roundtable discussion with panelists Professor Linda Fentiman, Pace University School of Law and Visiting Professor of Law, University of Houston Law Center, Larry Finder, Esq., Haynes & Boone, L.L.P., and Larry Campagna, Esq., Chamberlain, Hrdlicka, White, Williams & Martin, L.L.P.Gerry Szott Moohr, Alumnae Professor of Law, University of Houston Law Center, will moderate.

Transcripts and related articles will be published in the Houston Business and Tax Law Journal, and a podcast will be available at www.hbtlj.org.

The symposium is sponsored by the Houston Business and Tax Law Journal and the Criminal Justice Institute of the University of Houston Law Center.